CA U SE NO . 03
- 1 5
- 00 285
- CV

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

V OLKSWAGEN G ROUP OF A MERICA , I NC . AND A UDI OF A MERICA , I NC . OF T EXAS Appellants,

v. J OHN W ALKER III, IN HIS OFFICIAL CAPACITY AS C HAIRMAN OF THE T EXAS D EPARTMENT OF M OTOR V EHICLES B OARD , AND THE H ONORABLE M ICHAEL J. O’M ALLEY AND THE H ONORABLE P ENNY A. W ILKOV , IN THEIR OFFICIAL CAPACITIES AS A DMINISTRATIVE L AW J UDGES FOR THE S TATE O FFICE OF

A DMINISTRATIVE H EARINGS Appellees. On Appeal from the 201 st Judicial District Court, Travis County, Texas

Honorable Amy Clark Meachum, Presiding Judge
APPELLEES O’MALLEY AND WILKOV’S RESPONSE TO APPELLANTS’ VERIFIED MOTION FOR TEMPORARY RELIEF

KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
SHELLEY DAHLBERG Associate Deputy Attorney General for Civil Litigation DAVID A. TALBOT, JR. Chief, Administrative Law Division June 26, 2015 KIMBERLY L. FUCHS State Bar No. 240 44140 Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 Telephone: (512) 475

- 41 95 Facsimile: (512) 320

- 0167
A TTORNEYS FOR A PPELLEES , T HE H ONORAB LE M ICHAEL J. O’M ALLEY AND THE H ONORABLE P ENNY A. W ILKOV ACCEPTED 03-15-00285-CV 5846601 THIRD COURT OF APPEALS

AUSTIN, TEXAS 6/26/2015 3:32:15 PM JEFFREY D. KYLE

CLERKii IDENTITY OF PARTIES AND COUNSEL APPELLANTS : Volkswagen Group of America, Inc., and Audi of America, Inc. COUNSEL:
S. SHAWN STEPHENS Texas Bar No. 19160060 JAMES P. SULLIVAN Texas Bar No. 24070702 King & Spalding LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Telephone: (713) 751

- 3200 Facsimile: (713) 751

- 3290 sstephens@kslaw.com jsullivan@kslaw.com
BILLY M. DONLEY Texas Bar No. 05977085 MARK E. SMITH Texas Bar No. 24070639 Baker & Hostetler LLP 811 Main Street, Suite 1100 Houston, Texas 77002 Telephone: (713) 751

- 1600 Facsimile: (713) 751

- 1717 bdonley@bakerlaw.com mesmith@bakerlaw.com
APPELLEE : John Walker, III in his official capacity as Chairman of the Texas Department of Motor Vehicles Board COUNSEL: DENNIS McKINNEY State Bar No. 13719300 Assistant Attorney General Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 Telephone: (512) 475

- 4020 Facsimile: (512) 320

- 0167 dennis.mckinney@texasattorneygeneral.goviii

APPELLEES : The Honorable Michael J. O’Malley and The Honorable Penny A. Wilkov, in their official capacities as Administrative Law Judges for the State Office of Administra tive Hearings COUNSEL:
KIMBERLY L. FUCHS State Bar No. 240 44140 Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 Telephone: (512) 475

- 41 95 Facsimile: (512) 320

- 016 7 k imberly. f

uchs@texasattorneygeneral.gov APPELLEES: Budget Leasing, Inc. d/b/a Audi North Austin and Audi South Austin COUNSEL:
WM. R. CROCKER State Bar No. 5091000 Attorney at Law 807 Brazos, Ste 1014 Austin, Texas 78701 P.O. Box 1418 Austin, Texas 78767 Telephone: (512) 478

- 5611 Facsimile: (512) 474

- 2540 crockerlaw@earthlink.net
APPELLEES: Ricardo M. Weitz, Hi Tech Imports North, LLC, Hi Tech Imports South, LLC, and Hi Tech Imports, LLC COUNSEL:
J. BRUCE BENNET T State Bar No. 02145500 Cardwell, Hart & Bennett, LLP 807 Brazos, Suite 1001 Austin, Texas 78701 Telephone: (512) 322

- 0011 Facsimile: (512) 322

- 0808 jbb.chblaw@sbcglobal.net
andiv COUNSEL:
JOSEPH W. LETZER State Bar No. 24030763 DENT M. MORTON State Bar No. 24056645 Burr & Forman, LLP 420 20 TH Street N, Suite 3400 Birmingham, AL 35203

- 5210 Telephone: (205) 251

- 3000 Facsimile: (205) 458

- 5100 jletzer@burr.com dmorton@burr.com

R EFERENCE TO THE P ARTIES Appellants, Volkswagen Group of America, Inc. and Audi Group of America, Inc., will be referred to as “Audi.” Appellee John Walker III will be referred to as “Walker.” Appellee Budget Leasing and Appellees Ricardo M. Weitz, Hi Tech Imports North, LLC, Hi Tech Imports South, LLC, and Hi Tech Imports, LLC , will be referred to collectively as “Intervenors.” Appellees Michael J. O’Malley and Penny A. Wilkov will be referred to as “SOAH ALJs.”v TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL

................................ ........................... ii
REFERENCE TO THE PARTIES

................................ ................................ .......... iv
TABLE OF CONTENTS

................................ ................................ ........................... v INTRODUCTION

................................ ................................ ................................ ..... 1
ARGUMENT

................................ ................................ ................................ ............. 2
A. TRAP 29.3 is inapplicable to this case.

................................ ........................... 2
B. The Court’s power to issue a Writ of Injunction is circumscribed by the Texas Constitution.

................................ ................................ .......................... 3
C. Audi has little realistic chance of prevailing in its underlying case because its u ltra vires claims against the SOAH ALJs are meritless.

.......................... 6
CONCLUSION AND PRAYER

................................ ................................ ............. 11
CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 12
CERTIFICATE OF SERVICE

................................ ................................ ................ 12vi INDEX OF AUTHORITIES CASES Andrade v. NAACP of Austin , 345 S.W.3d 1 (Tex. 2011)

................................ ................................ .......................... 9 Baird v. Sam Houston Elec. Coop , 627 S.W.2d 732 (Tex. App.

— Houston [1st Dist.] 1981, no writ)

................................ ........................ 6 City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009)

................................ ................................ .................. 5, 7 Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex. , 294 S.W.3d 276 (Tex. App.

— Austin 2009, no pet.)

................................ ................. 9
Creedmoor

- Maha Water Supply Corp. v. Tex . Comm’n on Envtl. Quality , 307 S.W.3d 505 (Tex. App.

— Austin 2010, no pet.)

................................ ............... 10 Foster v. Tex. Dep’t of Criminal Justice , 344 S.W.3d 543 (Tex. App.

— Austin 2011, pet. denied)

................................ ........ 10
Hendee v. Dewhurst , 228 S.W.3d 354 (Tex. App.

— Austin 2007, pet. denied)

................................ .......... 9 KEM Tex., Ltd. v. Tex. Dep’t of Transp ., No. 03

- 08

- 00468

- CV, 2009 WL 1811102 (Tex. App.

— Austin Jun. 26, 2009, no pet.)

................................ ............................... 9 Klumb v. Houston Mun. Emps. Pension Sys. , 405 S.W.3d 204 (Tex. App.

— Houston [1st Dist.] 2013) ; aff’d , 458 S.W.3d 1 (Tex. 2015)

................................ ................................ .............. 10
Madison v. Martinez , 42 S.W.2d 84 (Tex. Civ. App.

— Dallas 1931, writ ref’d)

................................ ......... 3vii

Mote Res. Inc. v. R.R. Comm’n of Tex. , 618 S.W.2d 877 (Tex. Civ. App.

— Austin 1981, no writ)

................................ ......... 5 N. Alamo Water Supply Corp. v. Tex. Dep’t of Health , 839 S.W.2d 455 (Tex. App.

— Austin 1992, writ denied)

................................ .......... 9 State v. Sledge , 36 S.W.3d 152 (Tex. App.

— Houston [1st Dist.] 2000, pet. denied)

........................ 8 Sw. Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n , 408 S.W.3d 549 (Tex. App.

— Austin 2013, pet. denied)

................................ .......... 8 Tex. Dep’t of Transp. v. Kyle , No. 04

- 06

- 00762

- CV, 2007 WL 1346555 (Tex. App.

— San Antonio May 9, 2007, pet. denied)

................................ .............. 10 Tex. Workers Comp. Comm’n v. Horton , 187 S.W.3d 282 (Tex. App.

— Beaumont 2006, no pet.)

................................ ......... 10 Westheimer Indep. Sch. Dist. v. Brockette , 567 S.W.2d 780 (Tex. 1978)

................................ ................................ ...................... 8
STATE OFFICE OF ADMINISTRATIVE HEARINGS ORDER S 1 In the Matter of Ricardo M. Weitz, et al. v. Volkswagen Group of America, Inc., et al. , SOAH Docket No. 608

- 13

- 4599.LIC, Remand Order No. 15 (Jun. 16, 2015)

................................ ................................ ....... 4 RULES Tex. R. App. P. 29.3

................................ ................................ ................................ ... 2 Tex. R. Civ . P. 329b

................................ ................................ ................................ ... 8

1 Proposal for decisions and orders of the State Office of Administrative Hearings are available on the internet at: http://www.soah.state.tx.us/PFDSearch/Search.asp and Westlaw©.viii

CONSTITUTIONAL PROVISIONS Tex. Const. Art. V § 6( a )

................................ ................................ .......................... 3TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellees Michael J. O’Malley and Penny A. Wilkov object to Appellants’ motion for temporary relief because the ultimate subject matter of the appeal will
not be moot if temporary relief does not issue, and Audi’s c laim for relief lack s merit

. SOAH has not committed any ultra vires acts, and Audi will have a right to judicial review of any fin al order issued by the DMV

. INTRODUCTION Audi alleges the ALJs violated SOAH procedural Rule 155.153 by accepting

a case rema nded to them by the Department of Motor Vehicles (DMV). The r ule at issue states that an Administrative Law Judge may reopen evidence in a case if the Proposal for Decision (PFD) has not issued. ALJs regularly accept cases remanded to them, and that rule has never been interpreted by SOAH or a court to prevent ALJs from considering cases on remand. The ALJs have not committed ultra vires acts, and Audi’s claim fails on its face. The trial court rightly granted the Plea to the
Jurisdiction. Additionally, temporary orders are an extraordinary remedy and are not needed or justified in this case. The ultimate subject matter in this case revolves
around whether the remand from DMV to SOAH was proper and whether the ALJs properly reopened the evidence on remand. These issues can be raised, if necessary, in a properly filed suit for judicial review under the Administrative Procedure Act2

(A PA ), but before this occurs, the administrative procedure must be permitted to
conclude.
ARGUMENT
A. TRAP 29.3 is inapplicable to this case. As a preliminary matter, Audi brings its motion under Rule of Appellate Procedure 29.3. However, Rule 29.3 does not apply

. Rule of Appellate Procedure 29.3 provides: When an appeal from an interlocutory order is perfected, the appellate court may make any temporary orders necessary to preserve the parties’ rights until disposition of the appeal and may require appropriate security. But the appellate court mu st not suspend the trial court’s order if the appellant’s rights would be adequately protected by supersedeas or another order made under Rule 24.
T EX
. R. A PP
. P. 29.3

. The lower court granted both Defendant Walker’s Plea to the Jurisdiction and Defendants O’Malley and Wilkov’s Plea to the J urisdiction, disposing of all parties and claims to the litigation. C.R. 2 030

- 31. These orders did not constitute interlocutory orders, but rather final orders. C.R. 2 030

- 34; 2 049. Therefore , Rule 29.3 does not apply.3

B. The Court’s p ower to i ssue a Writ of Injunction is c ircumscribed by the Texas Constitution. Despite the inapplicability of Rule 29.3, this Court does possess the authority to issue temporary orders, but the scope of this authority is narrower than that granted
to the Courts under the appellate rule. The Texas Constitution limits the Court’s inherent authority to issue relief again st t he parties to a pending appeal. That inherent authority extends only to orders that protect appellate jurisdiction. T EX
. C ONST
. art.
V § 6(a) ; e.g. , Madison v. Martinez , 42 S.W.2d 84, 86 (Tex. Civ. App.

— Dallas 1931, writ ref’d )

. This grant of authority d oes not establish a right on the part of any party,
it is within the discretion of the C ourt. Madison v. Martinez , 42 S.W.2d at 86 ( “ Courts of Civil Appeals and the judges thereof “may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”” )

. To the extent the Court seeks to protect its jurisdiction, it may issue writs of injunction, to the parties , and prohibition, to the lower courts. In this case, while the specific alleged ultra vires claim against SOAH may become moot during the pendency of the appeal, the Court will not lose its jurisdiction over the underlying subject matter. This case ultimately involves
whether the DMV properly remanded this case to SOAH and whether the ALJs properly accepted the remand

. This Court will not lose its ability to make a decision
on this issue.4

The ALJs have already re

- opened and re

- closed the record, and they will soon
issue a new PF D

. If Audi is dissatisfied with th is PF D and the subsequent actions taken by the DMV, it will have a chance to argue and develop its case through a suit for judicial review in district court under the Administrati ve Procedure Act. Audi

can then argue that the remand was improper. If it is dissatisfied with the actions of the district court, it will once again have the opportunity to appeal to this Court. This Court will, ultimately, have the opportunity to rule on whether the remand was
proper. Although Audi claims this court needs to issue extraordinary relief to preserve
its claims that SOAH committed an ultra vires act by reopening the record in
violation of Rule 155. 153 , this claim is already moot. Rule 15 5 .153 says: (a) Judge’s authority and duties. The judge shall have the authority and duty to: (1) conduct a full, fair, and efficient hearing; (2) take action to avoid unnecessary delay in the disposition of the proceeding; (3) maintain order; and (4) reopen the record when justice requires, if the judge has not issued a dismissal, proposal for decision, or final decision.
1 T EX
. A DMIN
. C ODE § 155.153 (2008) (State Office of Admin. Hearings, Rules of Procedure) The rule only involves SOAH’s ability to reopen the record . The record has already been reopen ed and closed again. State Office of Admin. Hearings, In the Matter of Ricardo M. Weitz, et al. v. Volkswagen Group of America, Inc., et al. , SOAH Docket No. 608

- 13

- 4599. LIC, Remand Order No. 15 (Jun. 16, 2015)5

(remand order closing the record)

. As the state’s waiver of immunity for ultra vires claims is limited to prospective injunctive relief, an order declari ng this previous act
to be ultra vires would be retrospective relief, and thus barred by sovereign immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 376 (Tex. 2009)

. The larger issue, whether the remand was proper , will not be moot for failure to issue a temporary order. What Audi is really asking for is an injunction preventing
SOAH from issuin g a second PFD. Audi has failed to plead a proper cause of action for this type of relief. Therefore, Audi’s request for an injunction barring the ALJs from issuing a new PFD is not proper under the constitutional standard. The situations in which
the u se of such an extraordinary remedy is proper include only those situations in
which the Court will not have the ability to rule on the ultimate subject matter
without such relief. A writ o f injunction is appropriate, for example, to prevent the
sale of re al property to which a party asserts a present right that will not cease to
exist unless and until a court rules on the substance of the lawsuit. E.g. , Mote Re s . Inc. v. R

. R

. Comm’n of Tex. , 618 S.W.2d 877, 879 (Tex. Civ. App.

— Austin 1981, no writ) (issuing appellate injunction for deprivation of title to oil and gas produced under the rule of capture, because property interest in captured minerals would not be extinguished, if at all, until final judgment).6

This grant of authority is significantl y more constrained than the trial court’s authority, in the exercise of plenary jurisdiction, to issue a temporary injunction order preserving the status quo ante

. See Baird v. Sam Houston Elec. Coop , 627 S.W.2d 732, 733

- 34 (Tex. App.

— Houston [1st Dist.] 1981, no writ ) . The Court lacks authority to i ssue the writ merely to preserve the parties from alleged harm pending appeal. Id. In the instant case, the effect of the refusal of the district court to grant temporary relief would result only in a delay in having the remand issue considered , leaving the subject matter of the appeal in such a condition that the judgment of this

court cou ld effectively operate thereon. Therefore, this C ourt is without jurisdiction to grant such relief, because its juris diction over the subject matter of the appeal
would not be invaded by failure to grant the relief

. To the extent this Court decides it does have jurisdiction to issue the requested orders, ALJs O’Malley and Wilkov ask this Court to decline to issue an injunction, as Audi will have an opportunity to

c hallenge the remand at a later time.
C. Audi has little realistic chance o f prevailing in its underlying case because its ultra vires claims against the SOAH ALJs are m eritless . To the extent this Court’s jurisdiction to enter Audi’s requested order is
prope r, t his Court should decline jurisdiction because Audi’s underlying claim against the SOAH ALJs is meritless.7

An ultra vires act occurs when an official acts without constitutional or statutory authority, or in violation of the constitution or a statute

. City of El Paso v. Heinrich, 284 S.W.3d at 372

. Audi claim s the SOAH ALJs violated SOAH’s
Procedural Rule 155.153 by accepting a case remanded to SOAH

. Although the ALJs do not dispute that substantive Agency Rules are generally treated like statutes, at least in matters of statutory construction, Audi has pointed to no precedent indicating that violation of a procedural rule can - form the basis of an ult ra vires
claim. SOAH has always interpreted Rule 155.153 to mean it s ALJs cannot take new evidence concerning a Proposal for Decision that has already been issued. However, SOAH has also always interpreted Rule 155.153 to allow the taking of additional

e vidence in a remand proceeding in which a new supplemental or amended P roposal
for D ecision will be issued. This interpretation can only be an ultra vires act if Audi
can show that the ALJs’ interpretation of this rule is inconsistent with their statutory authority. Audi has made no attempt to do so.
Audi cited no cases holding that Rule 155.153 prevents remands. In fact, the legislature specifically contemplated SOAH evaluating new evidence on remand. (See Tex. Gov’t Code § 2001.175(c) , which authorizes a district court to order SOAH to consider evidence not already in the record.) The process at SOAH is akin to the process in the court system. If a district court rec eives a request to reconsider8

an issue or admit new evidence outside of its plenary power, it cannot do so. Tex. R. Civ. P. 329b. However, if a case is remanded by an appellate court to develop the factual record, the trial court again has the ability to admit evidence and make rulings in a case. Further, an agency is given deference to its interpretation of its own rules. Sw. Pharmacy Solutions, Inc. v. Tex. Health and Human Servs. Comm'n , 408 S.W.3d 549, 561 (Tex. App.

— Austin 2013, pet. denied) (citing R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 629 (Tex. 2011) ) . It is certainly reasonable for SOAH to interpret its rule in a way that allows it to consider additional evidence in a remand proceeding when asked by an agency or a court. “Courts generally hold that administrative bodies are entitled to and should exercise the duties and functions conferred by statute without interference from the courts.” Westheimer Indep. Sch. Dist. v. Brockette , 567 S.W.2d 780, 785 (Tex. 1978)

. Further, in order to state a claim against the ALJs , not only must the Appellants specificall y state a cause of action, they must also demonstrate that the cause of action waives the state’s immunity. “A party who sues the State must have an independent waiver of immunity from suit for each claim in the suit.” State v. Sledge , 36 S.W.3d 152, 156 (Tex. App.

— Houston [1st Dist.] 2000, pet. denied)

. Texas courts have held that it is not ultra vires for an agency to incorrectly interpret the law, thus, a claim based on this allegation will fail to waive sovereign immunity9

or confer jurisdiction upon the court and may also be held as redundant to a suit for judicial review. See Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex. , 294 S.W.3d 276, 285 (Tex. App.

— Austin 2009, no pet.) ; N. Alamo Water Supply Corp. v. Tex. Dep’t of Health , 839 S.W.2d 455, 458

- 59 (Tex. App.

— Austin 1992, writ denied) ( “The fact that the [agency] might decide ‘wrongly’ in the eyes of an opposing party does not vitiate the agency’s jurisdiction to make an initial decision.”); KEM Tex., Ltd. v. Tex. Dep’t of Transp ., No. 03

- 08

- 00468

- CV, 2009 WL 1811102 (Tex. App.

— Austin Ju n. 26, 2009, no pet.) (mem. op.)

. Because Audi
ha s failed to state an ultra vires claim, it ha s also failed to waive the SOAH ALJs entitlement to sovereign immunity.
In Hendee v. Dewhurst , this Court clearly explained this princi ple, opining:
It is also well

- established that where a trial court’s jurisdiction depends upon whether a state official’s acts are within her constitutional or statutory authority, such as when a plaintiff alleges ultra vires action to avoid sovereign immu nity, the trial court may sometimes be able to decide the jurisdictional issue as a matter of law based on the pleadings by construing the constitutional and statutory provisions defining the actor’s authority and ascertaining whether the acts alleged woul d exceed that authority.
Hendee v. Dewhurst , 228 S.W.3d 354, 368 (Tex. App.

— Austin 2007, pet. denied)

. Audi must plead facts that demonstrate the ALJs acted in contravention of constitutional or statutory authority or failed to perform a ministerial act; suits that
seek to control discretionary decisions are barred. See, e.g. , Andrade v. NAACP of
Austin , 345 S.W.3d 1, 10

- 12 (Tex. 2011) (failure to plead viable constitutional claim10

bars suit against government entity); Klumb v. Houston Mun. Emps. Pension Sys. , 405 S.W.3d 204, 224 (Tex. App.

— Houston [1st Dist.] 2013) , aff’d , 458 S.W.3d 1 (Tex. 2015) (when “plaintiff’s constitutional claim is facially invali d, the trial court must grant a

. . . plea to the jurisdiction asserting governmental immunity”);
Creedmoor

- Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality , 307 S.W.3d 505, 515

- 16 (Tex. App.

— Austin 2010, no pet.) (“if the plaintiff alleges only facts demonstrating acts within the o fficer’s legal authority and discretion, the claim seeks to control state action, and is barr ed by sovereign immunity”). And, if the claim is subject to dismissal, it is an improper basis for temporary relief by either the trial court or the court of appea ls. The lack of an ultra vires act implicates subject

- matter jurisdiction over the underlying lawsuit. If a party successfully challenges subject

- matter jurisdiction in a temporary injunction proceeding, no temporary relief can issue. Foster v. Tex. Dep’ t of Criminal Justice , 344 S.W.3d 543, 549 (Tex. App.

— Austin 2011, pet. d enied ) (no temporary injunction if underlying claim is barred); see also Tex. Dep’t of Transp. v. Kyle , No.
04

- 06

- 00762

- CV, 2007 WL 1346555, at *7 (Tex. A pp.

— San Antonio May 9, 2007, pet. denied) (mem. op .) ; Tex. Workers Comp. Comm’n v. Horton , 187 S.W.3d 282, 290 (Tex. App.

— Beaumont 2006, no pet

. ) Likewise, an appellate court cannot issue interim relief in a case over which it has no jurisdiction.11 CONCLUSION AND PRAYER For the reasons stated above, SOAH ALJs ask this Court to deny Appellants’ motion for temporary relief

. Respectfully s ubmitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
SHELLEY DAHLBERG Associate Deputy Attorney General for Civil Litigation DAVID A. TALBOT, JR. Chief, Administrative Law Division /s/ Kimberly Fuchs KIMBERLY FUCHS State Bar No. 240 44140 Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 Telephone: (512) 475

- 41 95 Facsimile: (512) 320

- 016 7 kimberly.fuchs @texasattorneygeneral.gov
A TTORNEYS FOR A PPELLEES , T HE H ONORABLE M ICHAEL J. O’M ALLEY AND THE H ONORABLE P ENNY A. W ILKOV , IN THEIR OFFICIAL CAPAC ITIES AS A DMINISTRATIVE L AW J UDGES FOR THE S TATE O FFICE OF A DMINISTRATIVE H EARINGS12 CERTIFICATE OF COMPLIANCE I certify that the Response submitted by Defendant s O ’ Malley and Wilkov of
the State Office of Administrative Hearings complies with Rule 9 of the Texas Rules of Appellate Procedure and the word count of this document is 2, 562

. The word processing software used to prepare this filing and calculate the word count of the
document is Microsoft Word 201 3

. Date: June 26, 2015 /s/ Kimberly Fuchs KIMBERLY FUCHS A TTORNEY FOR D EFENDANT S TATE O FFICE OF A DMINISTRATIVE H EARINGS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant O’Malley and Wil k ov ’ s Response to Appellants’ Verified Motion for Temporary
Relief has been served on June 26, 2015, on the following parties and/or counsel

- of

record via electronic transmission, e

- mail and/or facsimile : S. SHAWN STEPHENS Texas Bar No. 19160060 JAMES P. SULLIVAN Texas Bar No. 24070702 King & Spalding LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 Telephone: (713) 751

- 3200 Facsimile: (713) 751

- 3290 sstephens@kslaw.com jsullivan@kslaw.com J. BRUCE BENNET T State Bar No. 02145500 Cardwell, Hart & Bennett, LLP 807 Brazos, Suite 1001 Austin, Texas 78701 Telephone: (512) 322

- 0011 Facsimile: (512) 322

- 0808 jbb.chblaw@sbcglobal.net13

BILLY M. DONLEY State Bar No. 05977085 MARK E. SMITH State Bar No. 24070639 Baker & Hostetler LLP 811 Main Street, Suite 1100 Houston, Texas 77002 Telephone: (713) 751

- 1600 Facsimile: (713) 751

- 1717 bdonley@bakerlaw.com mesmith@bakerlaw.com Attorneys for Appellants Volkswagen Group of Americas, Inc. and Audi of America, Inc. JOSEPH W. LETZER State Bar No. 24030763 DENT M. MORTON State Bar No. 24056645 Burr & Forman, LLP 420 20 TH Street N, Suite 3400 Birmingham, AL 35203

- 5210 Telephone: (205) 251

- 3000 Facsimile: (205) 458

- 5100 jletzer@burr.com dmorton@burr.com Attorneys for Appellees Ricardo M. Weitz, Hi Tech Imports North, LLC, Hi Tech Imports South, LLC, and Hi Tech Imports, LLC
W ILLIA M. R. CROCKER State Bar No. 5091000 Attorney at Law 807 Brazos, Ste 1014 Austin, Texas 78701 P.O. Box 1418 Austin, Texas 78767 Telephone: (512) 478

- 5611 Facsimile: (512) 474

- 2540 crockerlaw@earthlink.net Attorney for Appellee Budget Leasing, Inc. d/b/a Audi North Austin and Audi South Austin DENNIS McKINNEY State Bar No. 13719300 Assistant Attorney General Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 Telephone: (512) 475

- 4020 Facsimile: (512) 320

- 0167 dennis.mckinney@texasattorneygeneral.gov Attorney for Appellee John Walker III, in his official capacity as Chairman of the Texas Department of Motor Vehicles Board

/s/ Kimberly Fuchs KIMBERLY FUCHS A TTORNEY FOR A PPELLEES SOAH A DMINISTRATIVE L AW J UDGES O’M ALLEY AND W ILKOV